Saint Louis University School of Law Scholarship Commons All Faculty Scholarship 2011 How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question of Assistance to the Voter Chad Flanders Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Election Law Commons, and the Law and Politics Commons No. 2011 - 18 How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question of Assistance to the Voter Chad Flanders Alaska L. Rev. (Forthcoming, 2011) This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1718707 Electronic copy available at: http://ssrn.com/abstract=1718707 FLANDERS_FINAL_2 5/6/2011 2:28:53 PM HOW DO YOU SPELL M-U-R-K-O-W-S-K-I? PART I: THE QUESTION OF ASSISTANCE TO THE VOTER CHAD FLANDERS* “They tell us this is impossible, you cannot do it, Alaskans can’t figure out how to fill in an oval and spell M-U-R-K-O-W-S-K- I?” —Sen. Lisa Murkowski1 ABSTRACT The 2010 Alaska Senate race is now over, ending amid considerable legal controversy. After losing the Republican primary to Tea Party- backed candidate Joe Miller, Senator Lisa Murkowski staged a write- in candidacy and, bucking history, won the general election. Much attention has been paid to Miller’s post-election challenges to Murkowski write-in ballots, claims which have been resolved in Murkowski’s favor. Still, a major election law question emerged prior to the election: to what extent can poll workers assist voters who need help to vote for a write-in candidate? After Murkowski declared her * Assistant Professor of Law, Saint Louis University School of Law and former law clerk to Justice Warren Matthews, Alaska Supreme Court, 2007–2008. Member, Alaska Bar. Thanks to Kirsten Nussbaumer, Efthimi Parasides, Molly Walker-Wilson, Joey Fishkin, Christopher Bradley, Hanah Volokh and Will Baude for comments and conversations on an earlier draft. I also thank David Kullman for his usual superlative assistance in tracking down materials. Comments welcome: e-mail to [email protected]. Part II of this essay will examine the post-election litigation between Joe Miller and Lisa Murkowski. 1. Sean Cockerham & Erika Bolstad, Murkowski Says ‘Let’s Make History’, ANCHORAGE DAILY NEWS, Sept. 18, 2010, http://www.adn.com/ 2010/09/17/1459578/murkowski-expected-to-say-yes.html. Electronic copy available at: http://ssrn.com/abstract=1718707 FLANDERS_FINAL_2 5/6/2011 2:28:53 PM 2 ALASKA LAW REVIEW [28:1 write-in candidacy, the Alaska Division of Elections distributed a list of eligible write-in candidates to polling places, in case voters had questions about how to spell the name of a write-in candidate. Both parties, sensing this would benefit Murkowski, cried foul and challenged the new policy in Alaska state court. They claimed that the Division violated its own regulations, which prohibited the distribution of “information” about write-in candidates at polling places. This article examines four issues about voter assistance in the Murkowski litigation: (1) how to interpret statutes and regulations regarding voter assistance; (2) what kind of assistance is permissible and what kind is not; (3) whether the state can legitimately limit the ability of voters to write in the name of a candidate; and (4) how decisions on assistance to voters before the election should affect a court’s disposition on cases that arise after the election. INTRODUCTION Lisa Murkowski’s write-in candidacy for re-election as Alaska’s Senator has finally succeeded.2 Early on, however, success was far from guaranteed. Faced with anti-incumbent sentiment and an early Tea Party surge, Murkowski lost the Republican primary to Joe Miller. Her candidacy was declared dead, and Murkowski herself appeared ready to throw in the towel.3 Even when she campaigned as a write-in candidate there were difficulties beyond simply fighting long odds to become the first successful write-in Senate candidate since Strom Thurmond.4 There was, more specifically to Ms. Murkowski, the problem of whether people would be able to successfully spell her name correctly on the ballot.5 That problem—and the Alaska Election Division’s response to it— made up the first round of legal wrangling in the Alaska Senatorial 2. Miller Concedes Loss to Murkowski, CBSNEWS.COM, Dec. 31, 2010, http://www.cbsnews.com/stories/2010/12/31/politics/main7201772.shtml. The final blow was dealt in Federal District Court, which dismissed all of Miller’s remaining claims against the State of Alaska. See Miller v. Treadwell, 736 F. Supp. 2d 1240 (D. Alaska 2010) (lifting stay, resolving pending motions, and dismissing case).The Alaska Supreme Court ruled on Miller’s post-election claims in Miller v. Treadwell, 245 P.3d 867 (Alaska 2010). 3. Michael Carey, Murkowski Write-In Run Bucks History, ANCHORAGE DAILY NEWS, Sept. 29, 2010, http://www.adn.com/2010/09/29/1478287/murkowski- write-in-run-bucks-history.html (recounting the history of write-in candidacies in Alaska, all of which were unsuccessful). 4. Id. 5. Cockerham & Bolstad, supra note 1. Electronic copy available at: http://ssrn.com/abstract=1718707 FLANDERS_FINAL_2 5/6/2011 2:28:53 PM 2011 VOTER ASSISTANCE SYMPOSIUM 3 contest.6 The Alaska Election Division, mindful that an unusually high number of people would be voting write-in, sought to provide polling places a list of all eligible write-in candidates, including Lisa Murkowski.7 The list, presumably, would be provided (in some fashion) to voters confused about how to spell the names of candidates. The Alaska Democratic Party filed suit (later joined by the Alaska Republican party) seeking to block use of the list.8 Both parties saw the move by the Division as an obvious help to the Murkowski campaign. A state superior court held in favor of the Democratic Party.9 But in late October, a per curiam decision by the Alaska Supreme Court reversed, allowing the Division to use the lists in limited circumstances.10 The questions presented by the pre-election lawsuits raise issues of enduring importance to election law, both in Alaska and throughout the United States. The Alaska Supreme Court’s pre-election decision has been eclipsed by both the election itself and Miller’s subsequent litigation to contest which write-in ballots should be counted.11 But the issues presented by the litigation will certainly come up again, perhaps now more than ever with the surge in third-party activism.12 This essay considers four questions raised by the early election litigation: First, how should courts read statutes regarding assistance to voters, especially when those statutes seem to clash with regulations promulgated by the election division itself? Second, what type of assistance should poll workers be allowed to give to voters who wish to vote for a write-in 6. See State, Div. of Elections v. Alaska Democratic Party, No. S-14054, slip op. at 4–5 (Alaska Oct. 29, 2010) (per curium). 7. Erika Bolstad, Parties Dispute Use of Election Write-In List, ANCHORAGE DAILY NEWS, Oct. 26, 2010, http://www.adn.com/2010/10/25/v-printer/ 1518500/parties-dispute-use-of-a-write.html. 8. Alaska Democratic Party v. Fenumiai, No. 3AN-10-11621CI (Alaska Sup. Ct. Oct. 27, 2010). 9. Id. 10. Alaska Democratic Party, No. S-14054, at 5–6. 11. Jill Burke, Election Staff ‘Changed the Rules,’ Miller Now Argues, ALASKA DISPATCH, Nov. 19, 2010, http://alaskadispatch.com/blogs/political- animal/7576-election-staff-changed-the-rules-miller-now-argues; Richard L. Hasen, Alaska’s Big Spelling Test: How Strong is Joe Miller’s Argument Against the Leeza Markovsky Vote?, SLATE, Nov. 11, 2010, http://www.slate.com/ id/2274556/. 12. See, e.g., Ben McGrath, Bloomberg, 2012?, THE NEW YORKER, Nov. 15, 2010, at 32 (quoting Democratic consultant Joe Trippi as putting the odds of an independent candidacy for President in 2012 or 2016 at “probably sixty to seventy percent”). FLANDERS_FINAL_2 5/6/2011 2:28:53 PM 4 ALASKA LAW REVIEW [28:1 candidate? When does voter assistance go too far, and constitute undue influence over the voter? Third, to what extent can a state legitimately disadvantage a write-in candidate who has won neither party’s primary? Can a state, for reasons of either principle or expediency, make it harder for voters to write in the names of candidates? Fourth, how should decisions regarding assistance to voters before they vote affect how votes are counted after the election? If voters were able to seek help in spelling a candidate’s name on a write-in ballot, does that mean that ballots that spell the name incorrectly should not be counted? In State, Division of Elections v. Alaska Democratic Party,13 the Alaska Supreme Court was required to answer, or at least hint at answers, to each of these questions, save the last, which was the subject of the post- election litigation.14 Generally, I agree with the court’s answers. Still, the supreme court’s opinion and oral arguments came under time pressure and the need to render a decision quickly so that the election could proceed. This essay attempts to clarify the arguments on both sides of each question and to justify more fully the supreme court’s decision. I. BACKGROUND The facts leading up to the supreme court’s decision should be vaguely familiar to those who followed the 2010 elections. Joe Miller, a veteran of Operation Desert Storm who graduated from West Point and Yale Law School, won a surprising upset over Senator Lisa Murkowski in the Republican primary, thanks in part to backing by the Tea Party and the support of former Alaska Governor Sarah Palin.15 His opponent, Senator Lisa Murkowski, conceded and appeared willing to accept the primary voters’ verdict that she should not be a candidate in the general election.16 A few days later, she changed course—based, she said, on the 13.No.